Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 894 (KAR)

Prasanna v. State Of Karnataka

2020-05-21

PRADEEP SINGH YERUR

body2020
JUDGMENT 1. Learned High Court Government Pleader takes notice for the respondent-State. 2. Heard the learned High Court Government Pleader. 3. The present petition is filed under Section 439 of Cr.P.C., for enlargement of the accused No.2, who is the petitioner herein, in Crime No.3/2020, registered before the Chikkanayakanahalli Police Station, Tumkur, for the offence punishable under Section 397 of IPC against this petitioner and four others. It is the case of the prosecution that a complaint was lodged on 13.01.2020, by one Mr. Kallesh, who is the permanent resident of Halugona Village and residing at garden land along with his family. The complainants mother and father narrated about the whole incident that on 13.01.2020 at about 3.30 a.m., some of the dacoits entered into their house and assaulted parents of the complainant. It is the case of the complainant that when he came out of the house, some persons were running away, he chased the said persons, but they escaped and he could not apprehend them. The complainant states that on enquiry with his parents, the father of the complainant told him that some persons came near the house and knocked the door. When the father of the complainant opened the door, five persons who were aged 32-35 years covering their face with mask, armed with deadly weapons, entered into the house with an intention to commit dacoity and assaulted father, mother and sister. It is the case of the complainant that when he tried to chase them, said persons assaulted him on his left hand with the iron rod and escaped from the spot. Thus, he could not apprehend them. He came back home crying and shouting. The neighbors gathered around him and he narrated the whole incident. The complainant states that he was sleeping in guest room, whereas his father, mother and sister were sleeping in the house. Due to the barking of dogs, the complainant woke up and when he tried to open the door, it was bolted from outside. Thereafter, the mother of the complainant opened the door. Accordingly, he lodged the complaint before the C.N.Halli, Police Station and accordingly, the Police registered an FIR for the offence punishable under Section 397 of IPC against the accused. 4. Thereafter, the mother of the complainant opened the door. Accordingly, he lodged the complaint before the C.N.Halli, Police Station and accordingly, the Police registered an FIR for the offence punishable under Section 397 of IPC against the accused. 4. The grounds that are urged before this Court by the petitioner, is innocent of the charges and he has been falsely implicated in the above case and he has not participated in the crime. The petitioner also states that he is willing and ready to furnish surety before this Court for his regular appearance and he will not violate any of the conditions/orders imposed by this Court. The petitioner states that an application was filed by him before the learned V Additional District and Sessions Judge, Tiptur under Section 439 of Cr.P.C in Crl.Misc.10052/2020, which came to be dismissed on 03.03.2020. It is the case that the learned V Additional District and Sessions Judge has not considered the case of the petitioner and thus erred in passing the order of dismissal of the bail petition. 5. The learned counsel for the petitioner submits that the petitioner is innocent and he has not committed any offence as alleged by the prosecution and he hails from respected family and deep roots in the society. It is also the case of the petitioner that he is the only earning member and his entire family depends on his earnings. Learned counsel for the petitioner further submits that there is no overacts alleged against petitioner in the complaint and FIR and there is no incriminate evidence that this petitioner is involved in the alleged offence. Further the petitioner states that the said offence is not punishable by death or imprisonment for life and on that, he shall abide by the stringent conditions, if any imposed by this Court. 6. Per contra, Mr. Rohith.B.J, learned HCGP opposes the bail on the ground that accused No.2, petitioner herein and accused No.3 were later on arrested on the basis of the complaint lodged by the complainant. He further submits that the offence is punishable and shall not be for less than seven years and also with fine. Learned HCGP submits that the investigating Officer had visited the place of incident and conducted spot mahazar and also collected available materials based on occurrence and confession statement has been recorded on 11.02.2020. He further submits that the offence is punishable and shall not be for less than seven years and also with fine. Learned HCGP submits that the investigating Officer had visited the place of incident and conducted spot mahazar and also collected available materials based on occurrence and confession statement has been recorded on 11.02.2020. Learned HCGP further submits that the investigation is still in progress and the charge sheet is yet to be filed and three of the others co-accused i.e., accused Nos.1, 4 & 5 are absconding and yet to be traced. Therefore, at this stage, he opposes the petition filed by the petitioner for release on bail as the same will lead tampering with evidence and he may interfere with the investigation process. 7. Learned counsel for the petitioner has brought to the notice of this Court that the petitioner was arrested on 28.01.2020 and since then he is in judicial custody. Accused No.3 has also applied for bail before the learned Sessions Judge and the same was granted and he has been enlarged on bail. Accused Nos.1, 4 & 5 have been absconding. It is to be noted here that while granting bail under Section 439 of Cr.P.C., the primary ingredients to be considered by the Court are as follows: a) The gravity and seriousness of the offence; b) Whether the accused will tamper with the investigation; c) Whether the offence is such that it is opposed to public policy and affects the society at large; d) Whether there is a danger of the accused fleeing, if released on bail; e) Previous antecedents of similar offence. 8. Going through the materials on record, which show that the only allegation of the complainant in the complaint and FIR is made out by the prosecution is five unidentified persons came to the house at 3.00 a.m. and assaulted his parents and sister. The charge sheet is yet to be filed by the police though the accused No.2 has been arrested on 28.01.2020. The charge sheet is not yet been filed by the police. I am of the opinion that the complainant has not identified the accused and neither anything stated about him. No overt acts are stated as against this petitioner. So therefore, the accused has already spent almost four months in judicial custody, there may not be any requirement of prosecution for custodial interrogation of the petitioner herein. I am of the opinion that the complainant has not identified the accused and neither anything stated about him. No overt acts are stated as against this petitioner. So therefore, the accused has already spent almost four months in judicial custody, there may not be any requirement of prosecution for custodial interrogation of the petitioner herein. Even if it is so required, the petitioner herein can be put to terms to cooperate with such interrogation, if any by the police. Therefore, I am of the opinion that petitioner No.2 deserves to be enlarged on bail. 9. It is also necessary to mention here that the petitioner herein had preferred the similar petition under Section 439 of Cr.P.C., before the V Additional District and Sessions Judge and the same was rejected by its order dated 03.03.2020. I have perused the said order passed by the learned V Additional District and Sessions Judge. The reason assigned therein for rejection of the bail as against the petitioner herein in paragraph No.11 is that 'Voluntary statement have been recorded and the important materials and documentary evidence have to be collected by the I.O to confirm as to whether these accused persons are involved in similar offences or not' . In view of such finding given by the learned Sessions Judge, this Court on the previous date of hearing directed the learned HCGP to ascertain whether this petitioner was involved in other similar offences and appraise this Court. On instructions, learned HCGP has submitted today that the petitioner herein is not involved in such similar offences. Therefore, in view of the fact that the petitioner was not involved in such criminal activities of similar nature earlier, personal liberty of the petitioner cannot be curtailed and he can be put to terms to cooperate with the investigation by the police. Therefore, the petitioner herein shall be enlarged on bail on the following conditions: 1. Petition is allowed. 2. Petitioner/accused No.2 shall execute a personal bond for a sum of Rs.1,00,000/-(Rupees One lakh only) with two sureties for the likesum to the satisfaction of the Jurisdictional Court. 3. Petitioner shall not tamper with the investigation. 4. Petitioner shall cooperate with the Investigation and appear before the Investigating Officer as and when summoned. 5. Petitioner shall not interfere with the investigation and he shall not cause any undue influence or threat to the witnesses. 6. 3. Petitioner shall not tamper with the investigation. 4. Petitioner shall cooperate with the Investigation and appear before the Investigating Officer as and when summoned. 5. Petitioner shall not interfere with the investigation and he shall not cause any undue influence or threat to the witnesses. 6. The petitioner shall not leave the country without the permission of the Court. 7. At the time of release, the Jail authorities shall strictly follow the protocol for Covid-19.